Jacob Kopnick

The Court of International Trade issued a confidential opinion in an antidumping case on welded line pipe from South Korea sustaining the Commerce Department's remand results in part and remanding in part, according to a June 7 filing. According to a letter filed by Judge Claire Kelly, the public version of the decision is expected either on or shortly after June 15 once all parties review bracketed information to determine its level of confidentiality. The case, originally filed by Husteel Co., concerns, among other things, Commerce's finding of a particular market situation in Korea for welded line pipe, the agency's reliance, or lack thereof, on a mandatory respondent's third country sales to calculate normal value and Commerce's reclassification of a respondent's reported losses associated with suspended production as general and administrative expenses.

The Commerce Department should have used the highest margin for the sole mandatory respondent in an antidumping case since the agency decided to rely on adverse facts available in the investigation, domestic silicon metal producers Globe Specialty Metals and Mississippi Silicon said in a June 7 complaint in the Court of International Trade. The two producers also challenged Commerce's decision to disregard that rate based on a financial statement from a firm "whose financial results were dominated by operations unrelated to the production of silicon metal" (Globe Specialty Metals, Inc. and Mississippi Silicon LLC v. United States, CIT #21-00231).

The Court of International Trade dismissed a case from Imperia Trading involving the first sale treatment of the company's imports from China, based on a joint stipulation filed by Imperia and the Justice Department, according to a June 4 order from Chief Judge Mark Barnett. Prior to the dismissal, Barnett had denied Imperia's motion to stay proceedings until a related opinion came from the U.S. Court of Appeals for the Federal Circuit on the status of first sale valuation for imports from a non-market economy (see 2106030046) (Imperia Trading, Inc. v. United States, CIT #15-00142).

Three entries of crystaline silicon photovoltaic (CSPV) products should not have been assessed antidumping and countervailing duties since the importer properly selected entry dates on its entry summary that preceeded the effective date of a scope ruling that found them covered by AD/CVD orders, Puerto Rico company Aireko Construction argued in a June 4 motion for summary judgment. Though Aireko had indicated the newly selected entry dates in a timely amendment to its protest, CBP ignored the amendment when it assessed AD/CV duties as if the entries had been filed after the scope ruling took effect, Aireko said (Aireko Construction LLC. v. United States, CIT #20-00128).

The following lawsuits were recently filed at the Court of International Trade:

The Commerce Department complied with the Court of International Trade's remand instructions by switching from an application of adverse facts available to neutral facts available in an antidumping case on frozen warmwater shrimp from India, defendant-intervenor Ad Hoc Shrimp Trade Action Committee said in June 3 comments on the remand results. CIT issued the remand instructions (see 2102030006) after finding that Commerce failed to "provide adequate assistance" to Elque Group, a respondent in the case and small company that was found to have provided adequate notice to Commerce that it needed assistance (Calcutta Seafoods Pvt. Ltd., Bay Seafood Pvt. Ltd., and Elque & Co. v. United States, CIT #19-00201). Commerce applied AFA originally since Elque Group's cost data was deemed unreliable by the agency.

The Department of Justice requested in a June 3 filing that the Court of International Trade clarify what the correct standard of review is for the court's remand of a trade adjustment assistance case (see 2105040032). The clarification request comes after a May 4 CIT remand that found that the Labor Department failed to discuss or even reference the evidence of why trade adjustment assistance was necessary in its determination (Communications Workers of America Local 4123, on behalf of Former Employees of AT&T Services, Inc. v. United States Secretary of Labor, CIT #20-00075).

The Commerce Department properly adhered to remand instructions from the Court of International Trade by relying on data from Xeneta XS over Maersk Line when calculating a company's surrogate ocean freight expenses in an antidumping administrative review on solar cells, both the Department of Justice and plaintiffs in the case agreed in two filings of comments on the remand results. The change in surrogate data selection led to a dumping margin of 5.08% for mandatory respondent Changzhou Trina Solar Energy Co. and the separate rate respondents, many of whom are also plaintiffs in the case (Changzhou Trina Solar Energy Co., Ltd., et al. v. United States, CIT #18-00176).

Proceedings in a Court of International Trade case involving a first sale valuation for imports from a non-market economy will continue as planned and won't await a ruling from the U.S. Court of Appeals for the Federal Circuit on a related case, Judge Mark Barnett said in a June 3 order denying a stay sought by apparel importer Imperia Trading. It argued that proceedings should be halted since the Department of Justice “relies heavily” on a March 1 CIT decision involving the first sale treatment of cookware imported by Meyer (see 2103020040). Barnett sided with DOJ, saying that "the court is not persuaded that the outcome of the appeal in Meyer Corp. ... will necessarily be determinative in this case." Imperia now faces a June 4 deadline to submit a motion for summary judgment barring an extension (Imperia Trading, Inc. v. United States, CIT #15-00142).

The Court of International Trade plans to bring about half of its staff back to its Foley Square location in New York by mid-July, Chief Judge Mark Barnett told Trade Law Daily. The court has not had a scheduled staff presence in its building since March 2020, with certain staff members entering the building on an ad hoc basis, the judge said. The goal is a "sustained reopening" with half of the employees continuing to telework for a few months beginning this summer.